Burial of Doctrine of Necessity: culprits must be denied fruits of adventurism

We, the people of Pakistan, stand yet again at a critical juncture of our history. Presently, what is at risk is not only democracy but the destiny of 160 million people of this nation who depend on the apex court of this country to deliver them from the yoke of military domination and set the country firmly on the path of constitutionalism.
The threat to democracy has its root in the distortion of the civil-military relationship in the country caused by military adventurism - sustained by opportunist legislators and politicians, supported by spineless bureaucrats, sanctioned by non-judicious judges, and suffered ultimately by civil society.
Consequently, even though it may be the collective responsibility of all the above-named parties to safeguard democracy, the Supreme Court is the only institution that is presently poised to play the lead role. It remains the dispenser of justice of last resort and has recently earned even greater respect because of the activist role it has assumed in protecting the fundamental rights of the citizens of Pakistan.
The solution to the present problem, though seemingly complex, is in fact simple. All that the Supreme Court needs to do is to reiterate the essential principles of democracy enshrined in the Objectives Resolution and take necessary steps to shelter the democratic structure of our Constitution from future military assaults.
The Chief Justice of Pakistan in the foreword to the Supreme Court Report (Golden Jubilee Edition 2006) indicated: "Every time there was political upheaval or Constitutional breakdown, the Court was called upon to decide the vires of the executive action. A constant theme that permeates its successive judgements, is indicative of the Court's endeavour to bring the country back to democratic rule and Constitutional dispensation." Unfortunately, the Court's efforts have not led to the desired result because of its reliance upon the doctrine of necessity and endorsement of the theory of transition.
It is heartening to note the recent pronouncements made by some of the present judges of the Supreme Court that they now consider the doctrine of necessity to be dead. Even though it is considered dead, it needs to be buried in the form of a definite declaration to this effect in a formal judgement. The time for action is now - any judgement to this effect rendered after a complete return to civilian rule will be of little or no significance.
Even pronouncing the doctrine of necessity dead and burying it would not be sufficient at this stage. Before the burial takes place it would be expedient for the Supreme Court to drive the proverbial nail in the coffin of the doctrine of necessity to ensure that it does not come back to haunt us in future. It could do so by proactively prescribing a new doctrine to preempt future assaults by military adventurers.
It could, for example, extend, adopt and apply to unconstitutional acts the rule of the "fruit of the poisonous tree". This rule provides that evidence derived from an illegal search, arrest or interrogation is inadmissible because the evidence - the fruit - is tainted by illegality - the poisonous tree. It is also a well-established principle of law that a criminal cannot derive any benefit from the fruits of a crime, ie the proceeds acquired through criminal acts. Therefore, a military usurper should not be allowed to enjoy the fruit of his unconstitutional act or to benefit from any position acquired by him through unconstitutional means.
The Supreme Court may need to go back to basics to chart the future constitutional path of this country. It may consider resorting to constitutional jurisprudence and public policy imperatives to counter the array of constitutional amendments and court precedents validating unconstitutional military take-overs from time to time. The Constitution is a politico-legal document-a "social contract" recognised by customary and general principles of law and protected by courts through the process of judicial review.
Extra-constitutional actions, even though validated through an amendment of the Constitution and an endorsement by the courts, exceed the limits of parliamentary supremacy and judicial authority. They, therefore, remain invalid under the general principles of contract law and constitutional policy.
Taking the latest example of the seventeenth amendment, it is quite clear from the facts that it was obtained through undue influence exerted against a military backdrop and misrepresentation and fraud perpetrated on MMA to secure its support for the constitutional amendment. The amendment is as such not only unconscionable and against constitutional public policy but also discriminatory and against the spirit and structure of the Constitution and hence invalid. It should even otherwise be considered as the fruit of the poisonous tree and struck down subject to whatever "savings" deemed appropriate by the Court.
Military dictatorship in any form, even civil government under military dominance, is against all international norms of civil society. While adopting and applying the rule of the "fruit of the poisonous tree" to ward off future military adventurism, the Supreme Court may consider reaffirming its commitment to the preservation of democracy and interpreting future civil-military relations in the country in accordance with the structure prescribed by the Constitution.
The internationally accepted principles of democracy in the context of civil-military relations have been well articulated by the U.S. Department of State: "The military in a democracy exists to protect the nation and the freedoms of its people. It does not represent or support any political viewpoint or ethnic and social group.
Its loyalty is to the larger ideals of the nation, to the rule of law, and to the principle of democracy itself...Ultimately, civilian control of the military ensures that defence and national security issues do not compromise the basic democratic values of majority rule, minority rights, and freedom of speech, religion, and due process. It is the responsibility of all political leaders to enforce civilian control, and the responsibility of the military to obey the lawful orders of civilian authorities." Pakistan may benefit from a similarly clear judicial enunciation of the role of the military in a democracy.
In any form of military dispensation, the judiciary cannot abdicate its authority and leave matters for the legislators and politicians to resolve, because neither the legislators nor the politicians are free to resolve these matters on their own, exclusively through the political process. A recent Freedom House Country Report (Pakistan 2007), which regards the status of political and civil liberties in Pakistan as "Not Free", indicates:
"Pakistan in 2006 remained firmly under the control of a military government headed by General Pervez Musharraf Despite facing opposition from both secular and Islamist political parties, pro-Musharraf forces continued to hold sway in national politics, and Musharraf worked to ensure his personal continuation in power through the planned 2007 presidential and parliamentary elections."
This report bears testimony to the many constitutional and legal infractions committed by the military regime to dominate the political scene. It is up to the judiciary to foster a genuine democracy in the country by taking all necessary steps to give all the presidential candidates and political parties a level playing field in the forthcoming elections.
The Supreme Court may, in exercise of its inherent jurisdiction, take suo moto notice and review all its judgements which have in the past validated extra-constitutional deviations and declare all measures taken during any direct or indirect military rule to be void subject to the defacto doctrine.
In addition to laying down such a bold and unambiguous precedent, the Court may, as a matter of judicial policy and in order to fulfil its role in upholding constitutionalism and the rule of law, also consider extending, adopting and applying the rule of the "fruit of the poisonous tree" to all future extra-constitutional actions. Furthermore, in order to irrevocably bind the future generation of judges, it may consider including mandatory adherence to democratic norms in their judicial code of conduct as well.
This is not merely a plea for the preservation of constitutional supremacy or promotion of the rule of law. It is also a plea for political justice, ordained by the Objectives Resolution, without which democracy is unlikely to take root in this country. Like every other Pakistani, I hope and pray that God grants the judges of the Supreme Court the wisdom and courage to steer the country in the right direction.